Sunday, October 6, 2013

Statutory Approvals - Why ignorance is no excuse for non-compliance

By their very nature Statutory Approvals are mandatory, they are not a choice.  This is something worth thinking about if you are thinking about buildings works now or in the future

Earlier this year an interesting article appeared in the Telegraph with the rather bold headline ‘One in 10 British homeowners have broken planning and building restrictions'. The article suggests that this is largely due to confusing information and guidelines and lack of or misunderstanding of recent changes, particularly to planning laws.  The article then goes onto state:

‘More than 176,000 homeowners have been ordered by council officials to take down or rectify building work carried out on their properties in the past five years, leaving them considerably out of pocket. Some homeowners have been caught out by mistakenly believing it would be easier to obtain planning permission after they have carried out work rather than before’

The above confirms my general experience of dealing with members of the public, over many years, in that there is a general lack of awareness, sometimes complete ignorance of which statutory approvals (permissions) may apply to any works they are proposing to undertake. For the person proposing (or in many cases starting the works without statutory approvals) the implications of not attaining the requisite permissions can be extremely costly, in addition to creating the potential of committing criminal offences and being subject to fines or possible imprisonment.  This is a serious issue and unfortunately for those who decide to proceed without the required permissions they will find that ignorance is no defence.

Statutory approvals are required for a variety of reasons and these will inevitably create a difference of opinion between those who propose to have works carried and those who are likely to be impacted by them.  Before being too critical of statutory approvals it is first worth taking a moment to think what the World and indeed your local environment would be like without them.  For example, if there were no planning controls your neighbour may decide to construct an extension or new building as big and as high as their land will permit, which could block your view to the nice rural landscape that you currently enjoy, significantly reduce the amount of natural light into your own building, and affect access to your own land, and so on.... Without Building Regulations approval there would be no control on the quality, standard or safety requirements in which your neighbour should build their extension.  Also, what happens if during the construction your neighbour damages your property? Statutory Approvals such as the Party Wall etc. Act 1996, if applicable, would provide a way of dealing with this.  Therefore, although many may see statutory approvals as an expensive hindrance you can see that the World we live in would be a very different place without some level of control.
Prior to undertaking any form of building works it is important to establish if, and if so which statutory approvals apply.  Many Local Authority websites provide a good level of information and guidance to help you to decide if you need to obtain various permissions, however it is always worth getting a professional opinion to answer any of your questions and to advise you more accurately.   This is important because the requirements for statutory approvals is very much dependent of the type/size/scale/location of proposed works and will vary from project to project.  Take planning permission for instance.  There are certain types of works/developments that are classified as ‘permitted development’ and therefore do not require formal planning approval.  I will be discussing this in more detail in next week’s article where you will see that although a formal planning application is not required it is still necessary to obtain something called a Certificate of Lawfulness from the Local Authority to confirm that the proposed works are classified as permitted development.

Members of the public may be surprised by the scope of statutory approvals that may apply and may not think twice about lopping or removing a tree, knocking a wall down in an old building or painting the outside of their house in a bright colour.  Each of these could be in breach of a Tree Preservation Order, Listed Building Consent or Conservation Area Consent respectively.  This provides just three examples where Statutory Approval could quite easily be breached or ignored, however as stated previously, the offending party could end up with a hefty bill for rectification or repair work, alongside a fine or in extreme cases imprisonment.
Consideration of Statutory Approvals for the vast majority of householders in the UK will primarily relate to Planning Permission, Building Regulations Approval and whether the provisions of the Party Wall etc. Act 1996 apply.  The process can be further complicated if you propose works to a Listed Building (usually a heritage building), or want to carry out external works or alterations to a building in a Conservation Area. If any works to, or removal of trees is proposed then enquires need to be made with the Local Authority to establish if Tree Preservation Orders are in place.   A whole host of other statutory considerations are required for developments of a larger or more complex nature, such as consideration of Environmental Impact, Ecological issues such as, Protected Species, Water Courses and Japanese Knotweed, then there are Traffic Assessments, Noise Impact Assessments and so on.

The Statutory Approvals discussed above provide an example of the common types of approvals that are required in the UK, however the list is far from exhaustive.  It would be extremely unwise to proceed too quickly with any proposed works/development until the full scope of Statutory Approvals has been established.  Obtaining Statutory Approvals can prove to be a costly exercise particularly when the Local Authority place conditions on the approval, or an application is refused and an applicant decides to appeal.  It is however sensible to find out any conditions that the Local Authority may impose as early as possible, as these can be factored into financial calculations.  This could mean that a scheme becomes financially unviable, possibly due to budget restraints, however, it is far better to find this out before works begin.

As stated earlier it is always advisable to obtain professional advice in respect of Statutory Approvals as early as possible. If this happens then perhaps we will see a reduction in Local Authority enforcement action as detailed in the news article at the beginning of this post.  There will always be those who want to cut corners and ‘do things under the radar’, however, always beware of taking this approach, as the consequences of enforcement action, is a risk just not worth taking.  Also, during the conveyance process Solicitors will request confirmation and copies of Statutory Approvals.  If you have not got them or cannot find then it is likely that perspective purchasers will be put off. By their very nature Statutory Approvals are mandatory, they are not a choice.  This is something worth thinking about if you are proposing any buildings works now or in the future

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